April 14, 2016

A California appeals court has struck down a trial judge’s controversial Vergara ruling that declared that several state laws governing teacher hiring, firing and layoffs are unconstitutional.

The appeals court decision in Vergara v. the State of California and the California Teachers Association is a victory for teachers unions in a case that has drawn national attention. At issue were five state laws that established layoff procedures based on seniority, laid out dismissal procedures and awarded teachers permanent status, known as tenure, after two years on the job.

David Welch, the driving force behind Students Matter, the organization that filed the lawsuit on behalf of nine students, promised the decision would be appealed to the California Supreme Court.

“I’m not going to mince words – we lost,” he wrote in an email. “This is a sad day for every child struggling to get the quality education he or she deserves – and is guaranteed by our state constitution.”

In his 2014 ruling, Los Angeles County Superior Court Judge Rolf Treu ruled that the teacher workplace laws interfered with students’ constitutional right to a quality education. The laws, Treu wrote, protected a small but significant number of “grossly ineffective” teachers and disproportionately harmed poor and minority students. In his 16-page decision, Treu wrote that evidence from a two-month trial “shocked the conscience.”

But in a strongly worded, unanimous decision, three judges of the Second District Court of Appeal, based in Los Angeles, wrote that the plaintiffs failed to show “that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students” – the prerequisite for an equal protection claim.

“With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are ‘a good idea,’” the decision states.

The judges also said that administrators are responsible for deciding where low-performing teachers teach, but that the lawsuit attacked the statutes, not how they may have been inequitably applied.

“Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators – not the statutes – ultimately determine where teachers within a district are assigned to teach,” the ruling states.

In a statement Thursday, Theodore Boutrous, lead attorney for Students Matter, said that the appeals court got it wrong. The decision “mistakenly blames local school districts for the egregious constitutional violations students are suffering each and every day, but the mountain of evidence we put on at trial proved – beyond any reasonable dispute – that the irrational, arbitrary, and abominable laws at issue in this case shackle school districts and impose severe and irreparable harm on students.”

He expressed optimism that “the California Supreme Court will have the final say.”

CTA President Eric Heins celebrated the ruling as a “great day for educators, and, more importantly, for students.”

“Today’s ruling reversing Treu’s decision overwhelmingly underscores that the laws under attack have been good for public education and good for kids and that the plaintiffs failed to establish any violation of a student’s constitutional rights,” he said in a statement. “Stripping teachers of their ability to stand up for their students and robbing school districts of the tools they need to make sound employment decisions was a wrong-headed scheme developed by people with no education expertise and the appellate court justices saw that.”

Superintendent of Public Instruction Tom Torlakson said in a statement, “The Appellate Court clearly recognized that Vergara was a flawed ruling and overturned it unanimously. Now we can move forward together to recruit, train, and support talented and dedicated educators in school districts all across our great state.”

Comments Policy

Don3 years ago3 years ago

The ruling throws out the lower court findings on the basis of a failure by the plaintiffs to demonstrate that groups one and two are not an identifiable classes, with a different rationale for each.
For Group 1 the ruling says, "the "unlucky subset" is not an identifiable class of persons."
The assumption of both courts is that students are assigned randomly to teachers. However, we don't know that to be true. … Read More

The ruling throws out the lower court findings on the basis of a failure by the plaintiffs to demonstrate that groups one and two are not an identifiable classes, with a different rationale for each.

For Group 1 the ruling says, “the “unlucky subset” is not an identifiable class of persons.”

The assumption of both courts is that students are assigned randomly to teachers. However, we don’t know that to be true. Schools use various methods for determining how students will be placed in classes. Moreover, the idea that randomness does not result in an identifiable class is based upon the idea that there is no precedent to use a random selection as an impinged upon class. From a non-legal, practical standpoint, if randomness is used for selection, clearly those selected suffer by unequal treatment if poor teachers result in less educational opportunity. The ruling states, “The group must be identifiable by a shared trait other than a violation of a fundamental right.” The random selection itself puts those student selected in the category of a shared trait, though not one of the traditional classes like race or SES. The harms flows subsequent to the selection when the student sits in the less desirable class with an ineffective teacher.

I don’t buy the argument of the appellate court that 1. selection is necessarily random or 2. unlucky students are not an identifiable class. For example, children are born at random into a race/suspect class/identifiable class and those are considered identifiable.

For Group 2, poor and minority students, the court claims that the plaintiffs placed the blame at the feet of staff not the statutes. The court maintains that the harm results from administrative decisions, not statutory requirements. But the plaintiffs made a exhaustive case for financial limitations to enact the statutes. If the statutes are enacted and funded in such a way as to make them unequally implementable, is the statute unconstitutional? That’s what Serrano said.

FloydThursby19413 years ago3 years ago

This is sad. I’ve had a child hurt by having a bad teacher. However, I have a strategic question. Studies show over 70% of Californians do not agree with LIFO/seniority/tenure, but the money and pressure from the union keeps it alive. With the money Students First and David Welch/Students Matter have, why not put a ballot initiative up that would overturn this law? I believe even with the unions spending against it, if it were … Read More

This is sad. I’ve had a child hurt by having a bad teacher. However, I have a strategic question. Studies show over 70% of Californians do not agree with LIFO/seniority/tenure, but the money and pressure from the union keeps it alive. With the money Students First and David Welch/Students Matter have, why not put a ballot initiative up that would overturn this law? I believe even with the unions spending against it, if it were written carefully and moderately and replaced the current 6 steps to fire a bad teacher with a more reasonable 1-2, and allowed merit pay, we could replace tenure/seniority with 3 year contracts.

If a teacher calls in sick a lot, isn’t trying very hard, or just isn’t good, the principal would not offer a new contract, so all teachers would have to worry about trying hard. Or you could just make it not too easy, but easier than it is now. Anything would be better than what we have now. Perhaps something more moderate than I would propose but not as extreme as the current status quo would pass.

I wonder why no one has tried this? It costs about $5 million to get something on the ballot. David Welch could afford this and the voters, we the people, could decide.

Gary Ravani3 years ago3 years ago

Don3 years ago3 years ago

By your logic any case brought by a “wealthy backer” should be summarily dismissed irrespective of the facts.

Stephen P. Blum, Esq.3 years ago3 years ago

The court of appeals got this right. The challenged statutes are not good laws, they need fixing, but they are are not unconstitutional. We have many laws that bring about undesirable results. In short, bad laws are not the same as unconstitutional laws. Judge Treu's decision turned out to be false, as it should have. He overreached.
Tenure was designed to protect good teachers. It also protects ineffective teachers. … Read More

The court of appeals got this right. The challenged statutes are not good laws, they need fixing, but they are are not unconstitutional. We have many laws that bring about undesirable results. In short, bad laws are not the same as unconstitutional laws. Judge Treu’s decision turned out to be false, as it should have. He overreached.
Tenure was designed to protect good teachers. It also protects ineffective teachers. More time is needed before a teacher acquires tenure. The 1983 change that shortened the time has always been a bad idea. Granting tenure after a year and a half is ridiculous. Firing a teacher without an improvement plan or stated reasons is even more outrageous.
Unsatisfactory performance needs to be defined and districts need to be much better at handling this matter.
If the tenure and unsatisfactory statutes are remedied, the layoff statute does not need to be changed.
There are solutions to all this. Time and space does not allow me to explain them all. If lawmakers and/or change agents are truly interested in making the needed changes, to improve our schools, I am happy to help.

Don3 years ago3 years ago

You've contradicted yourself. OTOH you say, "the challenged statutes are not good laws," and, OTOH, you say, "...the layoff statute does not need to be changed." Which is it? Read More

You’ve contradicted yourself. OTOH you say, “the challenged statutes are not good laws,” and, OTOH, you say, “…the layoff statute does not need to be changed.” Which is it?

TheMorrigan3 years ago3 years ago

Blum is addressing the probationary period, Don.

BTW, I thought you said that Treu’s legal reasoning was one of the most cogent and concise pieces of legal judgment that you read in all your years. . . .But when I read the appellate judges’ arguments, I guess it wasn’t, huh?

Don3 years ago3 years ago

I never said what you attribute to me. I haven’t read the appellate decision yet. I was referring to what Blum said – “The challenged statutes are not good laws,..” That doesn’t appear to refer only to the probationary period as you claim for some reason. This case was headed to the State Supreme Court one way or another.

TheMorrigan3 years ago3 years ago

You are right, Don. You never said "cogent and concise." You said "straightforward and concise." You also said that "The court’s own explanation is one of the best and, ironically, one of the shortest I read." Do you still think that?
Regarding Blum: There are a total of five statutes that he is referencing here. He agrees with one (LIFO) and wants to retool the other four (the one probationary period statute and three … Read More

You are right, Don. You never said “cogent and concise.” You said “straightforward and concise.” You also said that “The court’s own explanation is one of the best and, ironically, one of the shortest I read.” Do you still think that?

Regarding Blum: There are a total of five statutes that he is referencing here. He agrees with one (LIFO) and wants to retool the other four (the one probationary period statute and three termination statutes) . Because of this simple fact, his phrase that the “challenged statutes are not good laws” does not necessarily contradict his position about the single layoff statute. Since he believes that four of the five need (re)adjustments, the plural form of the phrasing is necessary and needed for his specific individual viewpoint. He clarifies that he agrees with the layoff one and not the others, and there are obviously more than two total statutes involved with Vergara so it kinda makes total sense.

Don3 years ago3 years ago

I'm also right that I did not say the ruling was, " one of the most cogent and concise pieces of legal judgment that [I] read in all my years." That was embellishment on your part.
I was referring to the Treu's take on the plaintive's argument. In that respect Treu was dead on in summarizing it, whether one agrees with his opinion or not. It won't go down in annals of history as a … Read More

I’m also right that I did not say the ruling was, ” one of the most cogent and concise pieces of legal judgment that [I] read in all my years.” That was embellishment on your part.

I was referring to the Treu’s take on the plaintive’s argument. In that respect Treu was dead on in summarizing it, whether one agrees with his opinion or not. It won’t go down in annals of history as a example of excellent jurisprudence, but then few do. The defense’s idea that the case cannot be definitively proved has some merit and a certain irony given union efforts to avoid quantifying the relationship between student achievement and teacher quality.

Maybe Mr. Blum can pipe in and tell us himself what he was trying to say.

Paul3 years ago3 years ago

Mr. Blum, how disingenuous of you to leave out half of the 1983 comprise: when the probationary period was shortened from 3 to 2 years, probationary teachers became at-will employees, subject to dismissal without cause.
Until 1983, non-re-election had been for-cause, albeit with a shorter and simpler process than for permanent ("tenured") teachers.
We can dicker about whether 2 years with each (yes, the clock resets every time a teacher moves) school district is long enough to … Read More

Mr. Blum, how disingenuous of you to leave out half of the 1983 comprise: when the probationary period was shortened from 3 to 2 years, probationary teachers became at-will employees, subject to dismissal without cause.

Until 1983, non-re-election had been for-cause, albeit with a shorter and simpler process than for permanent (“tenured”) teachers.

We can dicker about whether 2 years with each (yes, the clock resets every time a teacher moves) school district is long enough to decide, but even that is moot. SRI’s “Bumpy Road” research revealed that most teachers are employed in the substitute or the temporary classification for 1 year or more, before they accede to a probationary position.

The stakes for the employer are nil, as there is always a cheaper (i.e., with one year’s less experience) replacement waiting. The stakes for the teacher are very high. No-cause means just that: out of a job with no mandated feedback on one’s performance (Stull doesn’t apply to temporary teachers, and virtually all openings are temporary now) and a permanent black mark on one’s record.

Robert D. Skeels * rdsathene3 years ago3 years ago

This 2L would like to thank you for this cogent and informed comment. Given the extremist hyperbole coming from the plutocrats that funded this complaint, hearing analysis that is both reasonable, and makes suggestions for improvement to the existing law is a breath of fresh air.
On the other hand, ideologue Boutrous' strident disregard for students, teachers, and public education provides me an example of how not to be an attorney. Mountains of logically irrelevant and … Read More

This 2L would like to thank you for this cogent and informed comment. Given the extremist hyperbole coming from the plutocrats that funded this complaint, hearing analysis that is both reasonable, and makes suggestions for improvement to the existing law is a breath of fresh air.

On the other hand, ideologue Boutrous’ strident disregard for students, teachers, and public education provides me an example of how not to be an attorney. Mountains of logically irrelevant and legally irrelevant evidence are just that.

When I ran for LAUSD school board, I openly told both AALA and UTLA, and any educator that asked me that I supported changing the probationary period from eighteen months to twenty six months, so that administrators would have more observation time before granting permanent status. Neither of those organizaitons (they both endorsed me), nor any individual teacher I spoke with ever balked at the idea.

Despite the reactionary rhetoric coming from David F. Welch, Jamie Alter-Lynton, and Ben B. Austin, teachers are not averse to extending the probation period. And as you say, due process “was designed to protect good teachers”. It provides teachers protection to advocate for their student’s civil rights, something that is an anathema to the reactionary extremists behind the Vergara cause of action.

anthony mize3 years ago3 years ago

I am one of the teachers in the middle of- Vergara vs. State of California. Please see my blog anthonymize.net where you will find excerpts of my narrative Puddle Deep- describing my experiences as a teacher included in this trial. Thank you!